Amicus Curiae Brief — Blessing v. Freestone
Supreme Court brief1996
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at Wa No. 95-1441
In the
Supreme Court of the United
Supreme Court. U
Y } FILED
OCT 17 1996
CLERK
October Term, 1996
LINDA J. BLESSING, Director, Arizona Department of
Economic Security, in her official capacity,
vs.
Petitioner,
CATHY FREESTONE, et al.,
Respondents.
On Writ of Certiorari To The United States
Court of Appeals For The Ninth Circuit
La,
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BRIEF AMICUS CURIAE OF THE ANTI-POVERTY PROJECT OF
THE EDWIN F. MANDEL LEGAL AID CLINIC OF THE
UNIVERSITY OF CHICAGO LAW SCHOOL IN SUPPORT OF
RESPONDENT
GARY H. PALM
Counsel of Record
6020 South University Avenue
Chicago, Illinois 60637-2786
(773) 702-9611
Attorney for Amicus Curiae,
The Anti-Poverty Project
Edwin F. Mandel Legal Aid Clinic
University of Chicago Law School
In Support of Respondent
January 6, 1997
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TABLE OF CONTENTS
INTE s OP Time AMICUS CURIAE 2... ccc ccc ccc cccccneee l
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I. An Individual Enforceable Right Is Needed To Fulfill The Promise
RE dn 60d 6660 os b COCEE EE ab ede brdb eed ec ceece 5
A. Congress was justified in creating a §1983 enforceable right in
child support enforcement services. ................... 5
B. Illinois’ Track Record Exemplifies The Need For A §1983 Remedy
Il. Congress intended the requirements in Title [IV-D and the
corresponding regulations to create enforceable rights under all the
opinions (majority and dissents) in the Maine v. Thiboutout line of
Cases
WOTTYTITILILITTI TTT LITE TTT 11
A. Under the reasoning of all the Justices’ opinions who have written
on the subject of §1983, Title IV-D creates a right enforceable
EE od cee te cdeuase seuss ecewet ubet 11
l.
Under the reasoning of Justice Brennan's majority opinion in
Wright, Title [V-D creates a §1983 cause of action. ... 12
Under the reasoning of Justice O’Connor's dissenting opinion
in Wright, Title [V-D creates a §1983 cause of action. . 13
Under the reasoning of Justice Stevens’ majority opinion in
Golden State, Title ['V-D creates a §1983 cause of action. 15
Under the reasoning of Justice Kennedy's dissenting opinion in
Golden State, Title [V-D creates a §1983 cause of action. 15
Under the reasoning of Justice Brennan's majority opinion in
Wilder, Title [V-D creates a §1983 cause of action ... 16
Under the reasoning of Chief Justice Rehnquist's dissenting
opinion in Wilder, Title IV-D creates a §1983 cause of
Saree ere, eS Pry errr ee 16
Under the reasoning of Chief Justice Rehnquist's majority
opinion in Suter, Title 1V-D creates a §1983 cause
DT Leon tideued ce bed 4A 4 bhenkeewl hesenes 18
B. The recent passage of the Suter Override Bill underscores
Congress’ intent to create enforceable rights to the services
included in Title [V-D. .......... seees eeeceeecoeees 20
C. Title IV-D is enforceable under the Dissent in Maine y. a
eee seeteeeeeeeens
D. Title [V-D focuses unmistakably on custodial parents and their
children as beneficiaries of the federal funding. steteeees 23
I. Recognition by this Court of a §1983 cause of action will not result in
a flood of the federal courts. ......-- eee e ee eeeeee sseees 2A
A. IV-D federal enforcement is deficient on paper and a ‘dead letter
iM Practice. 0.1... cece eee eee tree eter ee ee eenees 25
B. Dlinois’ record with HHS demonstrates the failure of Title
TU... ccoviceesoeeeceees baeeekenn ener 25
C. Most §1983 litigants will turn to state, not federal courts to -
pursue their claims. ......---++eeeeeeeees jeeeeeeees
D. The remedies provided under IV-D are not sufficient to
CUATTIGD oo ccccccccccccvcescccsccceesscesecesess 28
E. Title IV-D Does Not Provide a Comprehensive Enforcement
Scheme Foreclosing a Right of Action under §1983. ...... 28
for ok) errr rrrrrr Ty 30
-ii-
TABLE OF AUTHORITIES
CASES: PAGE
O7F34288 (HC. 19) n
441 U.S. 6777 (1979) ) 14
"austin Cir. 1991) 23
209 U.S. 123 28
yo 1995 5, 6, 23,
24
493 U.S. 103 (1989) passim
go ry (M.D. Ala. 1995) 21
"sh abe. 1993) 23
496 US. 3561990) 7
na73 US. 159 (1985) n
ase taee passim
gy 1996) 21
ved US. 27 (1980) n
ooo 4, 12, 22
Pennhurst State School and Hosp. v. Halderman,
451 U.S. 1 (1981) 4, 12, 22
Testa vy. Katt,
330 U.S. 386 (1947)
oe ame rei
STATUTES:
54 Fed. Reg. 32284 (Aug. 4, 1990)
45 C.F.R. §301 et seq.
42 U.S.C. §1983
42 U.S.C. §601 et seq.
42 U.S.C. §652 et seq.
OTHER AUTHORITIES:
The Office of Child Support Enforcement, U.S.
Department of Health and Human Services Report
No. 0-95-PR/PM. Program Results Performance
Measurements Audit, State of Illinois 2
(September 16, 1996)
Improving America’s Schools Act of 1994, Pub. L. No.
103-382, 108 Stat. 3518 (1994), codified in 42
U.S.C. §1320(b)(13) (1994) .
-jv-
5.7
12, 20
4
’
A Study of the Cook County State’s Attorney's Office
Child Support Enforcement Division,
Chicago Council of Lawyers, October, 1995 8
Conference Report on H.R. 11, 102nd Cong., 2nd
Session, 138 Cong. Rec. H. 12552
(October 5, 1992)
The Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Pub. L. No. 104-193,
1996, 110 Stat. 2105 (1996)
21
INTEREST OF THE AMICUS CURIAE
Pursuant to Court Rule 37, Amicus Curiae respectfully submit this brief in
support of Respondent's request that this Court affirm the Ninth Court decision
that, by creating a private right of action, would uphold Congressional intent
to confer upon mothers and children the right to prompt child support
enforcement services. Consent to the filing of this brief has been granted by
counsel for all parties and letters indicating such consent have been filed with
the Clerk of this Court.
The Anti-Poverty Project of the Edwin F. Mandel Legal Aid Clinic of the
University of Chicago Law School provides services to assist women and
children in obtaining the appropriate governmental services to help them
achieve their economic and personal goals. Almost all of our clients are single
mothers who initially ask for help in obtaining child support enforcement
services from the State of Mlinois under Title [V-D. Many have been waiting
years for Dlinois’ 'V-D agency, the Illinois Department of Public Aid (“IDPA”)
to take the next step in their case. Some have waited up to five years without
even receiving an initial interview. Few of our clients have received timely
services. In every case that the Anti-Poverty Project has sought a written
explanation, the IV-D agency has admitted to serious violations of federal
regulations but has claimed that all that can be done is for the client to wait her
turn in line. Our clients need recognition by this Court that they can enforce
the federal time limits through § 1983 actions in state and federal court.
The Anti-Poverty Project expects to seek enforcement of Title ['V-D deadlines
mostly in state courts. Usually the §1983 claims will be made in the child
support proceeding itself. When IDPA misses deadlines in ordering blood
tests or obtaining the father’s pay records, for example, the Project may seek
to use §1983 to have the Court order IDPA to obey federal regulations and use
its contempt powers if necessary. When necessary, a separate state chancery
action can be used to obtain prompt services for that individual. Because the
Anti-Poverty Project has only one attorney, a part-time social worker and
fourteen University of Chicago law students, it is not in the position to bring
many class actions in federal court. Nonetheless, it is prepared to do so if the
State agencies remain so inadequate. At present, the Project is the only
program in the State of Illinois working to implement Title IV-D nghts.
For most women, child support is needed to move from welfare to work. The
Anti-Poverty Project helps each client develop her own employability plan.
including needed government benefits for training and job placement. Our
is ee -
2
clients often need help with day care, transportation costs, initial employment
expenses and suitable clothing.' While some of these costs can be obtained
from the government and private charities, many cannot. With the new two
year limits on welfare grants in Illinois as recently passed by Congress in the
Welfare Reform Act,’ our clients cannot stay on AFDC waiting out the State's
delays any longer. They need enforceable rights immediately to get their cases
moving again so that they can get off welfare within the next two years.
SUMMARY OF ARGUMENT
Without § 1983 remedies, mothers and their children will have no recourse to
enforce their right to prompt child support enforcement. Congress and the
President gave all American mothers’ and children the right to obtain prompt
child support enforcement services from the States. Congress specifically
instructed the Secretary of Health and Human Servicés to adopt “standards
establishing time limits” so that each case would proceed in a timely fashion.
Each State’s Governor agreed to obey these regulations when the Governor
reviewed and approved the State Plan.
The U.S. Department of Health and Human Services has repeatedly found
that Illinois* has been, and continues to be out of full compliance or even
substantial compliance (75%) with many time limits since the mid-1980's, yet
it has never penalized Dlinois for its negligence. Mothers and children in
Illinois should not be prevented by HHS’ indifference to their plight from
enforcing deadlines in their individual cases. Individual mothers and children
must be able to use § 1983 to enforce these deadlines and obtain services. After
all, the State governments entered into a contract agreeing to meet these
deadlines. If it cannot meet the deadlines, Hlinois should turn the federal money
over to other entities that can meet the deadlines or fire those who are
responsible for the disaster and replace them with effective managers. Literally
‘The wdividual chents we referred to in this bnef have given their consent to disclosing ther
names.
*The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104-193, 1996, 110 Stat. 2105 (1996).
"The overwhelming number of custodial parents are mothers and will be referred to
interchangeably as “mothers”. “custodial parents” or “iV -D recipients.”
‘This bnef will frequently analyze the performance of the state of Dunois in complying with
us [V-D requirements. as the State of Dhnois has authored an Amucus bnef representing the
States Moreover. it 1s also the State with which we have the most duect expenence.
3
millions of mothers and children are suffering in poverty or near poverty. As
these children become hungry three or more times a day, grow and need new
clothes and have the other expenses of growing up in America, their mothers
struggle alone to provide and the Government fails them. Fathers flaunt the
system; states are more effective collecting from parking violations scofflaws
than they are from deadbeat dads.
Illinois collects a mere $2.30 for every dollar spent on administrative
expenditures, ranking 48th in collections out of 54 states and territories in
1993. It is no wonder the costs to the State in lost reimbursement of AFDC
and the future costs of dependency on government benefits is staggering.
Mlinois manages to obtain reimbursement for AFDC expenditures in only 8.1%
of AFDC cases. These financial costs would be greatly reduced if the States
met their deadlines. The human costs are incalculable. With a two-year limit
on AFDC and the failure of the State to enforce child support, Illinois AFDC
recipients are scared and trapped. Even with entry-level jobs and day care
Subsidies, most will not be able to make it without child support. Child support
collections are vital to meet the extra costs of work. Mlinois pays an AFDC
grant of $377 per month for a family of three. Savings are out of the question,
as rent alone in Chicago is usually greater than $377. Congress and the
Department of Health and Human Services required Illinois to obey time limits,
and the States agreed. These time limits must be enforceable now in state and
federal courts so that these mothers and children have a fair chance to obtain
enough funds to get off welfare in two years.
Section 1983 is a necessary tool for enforcing the rights of mothers and
children. Individuals can use §1983 rights to enforce the time limits and can
do so without flooding federal courts. In Llinois, the Project's clients already
are relying on §1983 in state court child support proceedings to move for the
setting of scheduling orders to force Illinois to comply with the federal
deadlines. The State's Attorney and the Illinois Department of Public Aid
always Object and move to withdraw. The State takes the absurd position that
individuals cannot enforce these rights to prompt action but must instead drop
Out of the IV-D system entirely. This position vividly shows that the State has
no intention of obeying the deadlines. (Most mothers do not want to lose the
other IV-D services that are not available to private or legal aid attorneys, such
as income tax refund intercepts, Federal and State Parent Locate Services and
interstate enforcement.). So far, the trial judges have recognized the supremacy
of §1983 and federal law. They have refused to allow Dinois to withdraw its
4
services and have ordered more vigorous action to make up for past delays that
violated federal law. In other situations of delay in the state agency before a
case gets to court, individuals need §1983 equitable or mandamus actions in
state court to enforce the federal deadlines. Since the State takes the position
that there are no administrative remedies, §1983 actions are the mothers’ and
children's only recourse. The Illinois statutes do permit a Request for a
Written Explanation of why the delay should be acceptable and a conference
with the Illinois Department of Public Aid. The State's Attorneys’ Office
refuses to attend the conference or respond to the Request for Explanation so
that this process is usually ineffective. The State's Attorney further takes the
position that there is no way to obtain state court review of the administrative
delays under state law. Our only recourse to enforce these federal time limits
in state court is §1983.
When Congress, the President and the Secretary of the Department of Health
and Human Services adopted the Family Support Act and the regulations, they
did so against the background of pre-existing §1983 decisions of this Court.
Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (1988). At
the time the Act was adopted, it met all the §1983 construction canons used to
determine whether a statute created rights enforceable under §1983. Title IV-D
meets all the requirements set by every justice who has participated in the line
of cases since Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1,
(1981). When Congress perceived that the Court strayed from §1983
jurisprudence in Suter vy. Artist M., 112 S. Ct. 1360 (1992), it responded by
passing the Suter override law. Improving Americas School's Act of 1994,
Pub. L. 103-382, 108 Stat. 3518 (1994), codified at 42 U.S.C. § 1320(b)(13)
(1994). This piece of legislation reaffirmed all prior Supreme Court
interpretations and specifically rejected the exclusion of “State Plan” statutes
from §1983 enforcement.
Moreover, §1983 was adopted for this precise situation when the States
refused to obey federal law. At that time, it was the States’ treatment of the
freed slaves and the federal government's failure to intervene effectively to
enforce thir rights. In 1988, it was the failure of the States to enforce child
suppor: iaws The Child Support Enforcement Act of 1992, Pub. L. No. 102-
537, 106 Stat. 3531 (1992), was adopted because of the failure of the States
to protect a voiceless, voteless underclass of children in our society. In Monroe
y. Pape. 365 U.S. 167, 180 (1961), this Court recognized the importance of
§1983 when States fail to enforce their laws and federal laws because of
5
“prejudice, passion, neglect, intolerance or otherwise." Congress responded
in 1988 to the breakdown in child support enforcement in the States by
“tuming federalism on its head’ and transforming much of state family law into
federal law. The passage of these laws and regulations was bipartisan and
adopted by both the Republican and Democratic Administrations. Even under
the dissent’s position in Maine v. Thiboutout, 448 U.S. 1, 11 (1980) (Powell,
J. dissenting), the Child Support Enforcement Act should be included in the
“laws” enforceable under § 1983 because it is akin to statutes enacted under the
14th Amendment.
The Act explicitly states that each state agency will comply with the time
limits the HHS sets pursuant to Part 303 of 45 C.F.R.; however Illinois and
other states miss the deadlines in nearly every case. It is common for mothers
and their children to wait over five years without paternity being established,
even though the State knows where the father lives and works. Delay is the
enemy of the mothers and children and the friend of the reluctant fathers. Even
though arrearages are occasionally levied against recalcitrant fathers, they can
in no way compensate the children for the days and months of suffering they
endured while they went without basic needs. Many, many children go through
their whole childhood without any money being collected for their support, not
even the minimum of $10.00 per month.
ARGUMENT
I. An Individual Enforceable Right Is Needed To Fulfill
The Promise Of Title IV-D.
A. Congress was justified in creating a §1983 enforceable right in
child support enforcement services.
The Court must affirm the Ninth Circuit's decision because individuals who
are vicums of delay in the child support enforcement programs would otherwise
have no recourse. Freestone v. Cowan. 68 F. 3d 1141 (9th Cir. 1995). The
current IV-D program victimizes its clients too often by disobeying federal
deadlines. In its most recent audit, HHS determined that Dlinois was not in
substantial compliance in the areas of (1) establishment of paternity and
Support orders, and (2) review and adjustment of support orders. Further,
HHS discovered that Illinois had no case management system, as required by
45 C.F.R. 302.15(a(1) and 45 C.F.R. 303.2(c). Without a case management
system, Illinois has no way of even knowing when deadlines expire. The Office
of Child Support Enforcement, U.S. Department of Health and Human
- owe — <<
6
Services, Report No. 0-95-PR/PM, Program Results Performance
Measurements Audit, State of Dlinois 2 (September 16, 1996).
Under Title IV-D all custodial parents, regardless of income, are entitled to
representation in obtaining child support enforcement. While family law used
to be the domain of the states, Title IV-D significantly altered the relationship
between the states and the federal government. IV-D created a massive
infusion of federal funds and federal control into state child support collection
systems. Indeed, the state agencies created under Title IV-D are supposed to
provide the child support enforcement services that used to be provided by
private attorneys and legal aid lawyers. Thus, the child support enforcement
program set up under Title IV-D is the largest legal aid service in the country.
It is also the only legal service in the country permitted to operate in such an
abysmal fashion.
From their very statement of the interests, the States’ Amici Curiae have
attempted to scare this court about the impact of the Freestone decision. The
facts are far different from what the States present. Basically, Dlinois in
writing the States’ Amici Curiae brief, would have this Court say that it may
operate its IV-D program as it wishes, without regard to meeting the federal
deadlines mandated hy Congress, thereby rendering those time limits a dead
letter. These deadlines were arrived at through the administrative process with
significant input from the states. They reflect what would be good practice.
Indeed, from the perspective of most practitioners familiar with the system, the
current deadiines allow for far too much time.
Congress was justified in deciding that there needs to be a uniform system
with standards applicable to each case because the law and processes in each
state are very similar. Also, these deadlines are consistent with what should be
expected of any lawyer representing a client (albeit generally long).
Apparently, the States take the position that if they meet the deadlines in 75
percent of the cases, then they have done their job. But no private lawyer can
say to his or her client, “Well, sure, I missed the deadline in your case, but I
was in compliance with the deadlines in 75 percent of my cases, so you Cannot
sue me and recover for malpractice even though you I have failed.” Worse, the
fact is that the people who must suffer due to this unprofessional and
ineffective conduct are children who live in poverty or will live in poverty if
they do not receive child support from the absent parent.
Title IV-D and the time limit regulations set forth deadlines for each step of
each case. For example, 45 C.F.R. §303.4 requires that “[{w)ithin 90 calendar
7
days of locating the alleged father or non-custodial parent, regardless of
whether paternity has been established, [the IV-D agency must] establish an
order for support or complete service of process necessary to commence
proceedings to establish a support order and, if necessary, paternity.” The
regulation clearly sets forth the time frame in which IV-D agencies must
establish an order for support or complete service of process, yet this deadline
is routinely missed. As a regular practice, the State’s Attomey’s Office of
Cook County, Ilinois* misses an overwhelming number of the deadlines.* This
is not the way to run a law office. Effective attorneys do not violate established
standards for minimal competence and performance. In any law office outside
the sphere of IV-D agencies, such conduct would be grounds for dismissal or
even malpractice liability.
When deadlines are missed, the child at issue is deprived three-fold: 1) he or
she is deprived of the congressionally mandated right to know who his or her
father is, 2) the child is deprived of the federally mandated legal services that
the IV-D agency was to provide, and 3) the child is deprived of the financial
assistance needed to provide for his or her needs. Our clients do not expect that
in every case the states’ efforts will be successful in obtaining child support,
but they do expect the states to take each enforcement action with the
mandatory deadlines set by the federal law.
A wide gulf exists between what the federal regulations require and what the
Illinois TV-D agency actually does. This can best be understood by the
example of Julie Rodriguez, who did not receive any child support enforcement
for 13 years and no child support whatsoever either.
Seventeen years ago, Julie Rodriguez gave birth to a son, Richard. By
December 1980. paternity had been established and a monthly child support
order for $30 was entered. Shortly thereafter Richard’s father ceased paying
the order, and, true to form, the State’s Attomey’s Office took no steps to
enforce it. An effective attomey would have acted when IDPA determined that
the father was not paying his support obligations as required by 45 C.F.R.
$303.6. Pursuant to §303.6, an effective attorney would have taken “any
appropriate enforcement action . . . within no more than 30 calendar days”
Report No. [L-95-PR/PM. Program Results/Performance M ements i
Dhnow 2 (September 16, 1996). _ io saea
wht BRS ee
— ~
a
8
unless service of process was required. If service were required, an effective
attomey would have taken an appropriate enforcement action “within no later
than 60 calendar days.” Instead, the State's Attorney's Office did nothing for
13 years. The State's Attomey's Office waited 158 times longer than the
Federal Regulations permit. She repeatedly tried to contact her Assistant
State's Attomey with no success.
When Ms. Rodriguez implored the State's Attomey's Office in 1995 to be
effective advocates for her, the State’s Attorney's Office again failed to
perform competently in the most basic way by not communicating with her.
Had an Assistant State’s Attorney contacted her, the State's Attorney's Office
would not have filed a second useless paternity action since paternity had
already been established in 1980. An effective attomey would have “solicit(ed)
necessary and relevant information from the custodial parent and other relevant
sources and initiate{d) verification of information.” 45 C.F.R. §303.2. An
effective attorney would have done this either by interviewing Ms. Rodriguez
and asking whether paternity had already been established, or actually checked
the court records for the information. Instead, the State’s Attomey’s Office
failed to do either and wasted court resources and precious time seeking to
establish paternity - again.
The failure to communicate with the client is common with the State's
Attorney's Office.’ The Assistant State's Attorney handling the case often
conducts the first interview with the client in the courtroom under oath before
the judge, subject to cross-examination by the opposing party. An effective
attorney would meet with her client privately, outside the courtroom, off the
record. to secure the information necessary to advocate effectively for her
client. Indeed, she would have prepared her client to testify. But that is not
what the Assistant State’s Attorney did here. Here. the Assistant State's
Attomey leamed, from the judge, for the first time, that paternity had already
been established. Once the Assistant State's Attorney learned that paternity had
been established and a support order was in place, she should have tried to
enforce it. An effective attomey would have served the father’s employer with
a withholding order (45 C.F.R. §303.100), but that is not what the Assistant
State’s Attorney did here. Instead, the State's Attorney's Office failed to act
at all and waited 15 years before taking any action.
"A Study of the Cook County State's Attorney's Child Support Enforcement Division.
Chicago Council of Lawyers, October. 1995
9
The Assistant State's Attomey also learned that the court had modified the
$30 per month support order down to $15 per month in 1984. An effective
attomey would have initiated a review of the support order to determine if it
should be modified upwards given the father’s employment. 45 C.F.R.
§303.8. But that = et RO ag The
State’s Attorney's Office still has not taken action. |
Conspicuously absent from this argument is precisely what the State's
Attorney's Office did do over the course of the 13 years it failed to enforce
child support payments for Ms. Rodriguez and Richard. That is because in
[llinois, the State’s Attorney's Office uses a “team approach” to child support
enforcement. The State’s Attorney’s Office never knows at any point in time
exactly which attomey is handling a case; under the team approach, a different
attorney handles the case each time it requires legal action and no one Assistant
tate’s has term responsibility. .
rts it law firm or legal aid office would not operate in
this fashion. When a mother calls to speak with her lawyer, the office knows
who is working on her case. This is not what happens in the State's Attorney 's
Office. Indeed, many files have been lost in the State's Attomey’s Office
because no tracking system was in piace until quite recently. The Assistant
State’s Attorneys do not know themselves whether the State's Attorney's
Office will require them to appear in court on a particular day on behalf of a
client they have never met and about whom they know nothing.
B. Illinois’ Track Record Exemplifies The Need For A $1983 Remedy
Illinois’ track record for child support enforcement collections is abysmal.
Over the past decade, Dlinois has perpetually violated 42 U.S.C. §602(27).
From April 1, 1994 through March 31, 1995, the Department of Health and
Human Services audited Llinois’ Division of Child Support Enforcement
(DCSE). Out of the 251 cases HHS originally selected to include in the audit,
25% were excluded for a variety of reasons (e.g., insufficient information,
fathers who lived out of state, and fathers who were economically unable to
meet the enforcement orders, and cases that DCSE failed to closed). HHS then
looked only at those cases where DCSE possessed solid information, where
clients were cooperative and fathers were financially able to make support
payments. The results revealed that DCSE managed to establish Paternity and
Support orders in only 71% of the cases. DCSE Audit at 1. HHS explained
that this low efficiency rate reflected that DCSE failed to even attempt service
:
:
10
Of process in many cases and refer numerous cases to the State’s Attomey even
after they located the father. Additionally, HHS found that Llinois was only
able to meet the statutory requirements for review and adjustment of child
Support orders in a mere 64% of its cases. DCSE Audit at 1. Moreover, HHS
determined that DSCE fails to keep the adequate records required to provide
mothers and children efficient and effective service. DCSE Audit at 14. The
and that DCSE’s computer system was unable to track significant case events.
These statistics indicate that severe systemic problems exist in Llinois’ IV-D
agency. Because Illinois fails to accomplish the most basic tasks necessary to
Put mothers and their children in position to receive child support payments, it
only collects $2.30 for every $1 spent on the program. If Illinois managed to
collect at the national average, it could expect to recover at least $100 million
more in child support (as based on 1994 figures).
The results of HHS's audit incicate that the cases we see in the Mandel Legal
Aid Clinic are anything but anomalies. In fact, Linda LaFine’s case is a
perfect example of HHS's findings. For over 14 years, Dlinois’ IV-D agency
failed to collect a single child support payment for Mrs. LaFine and her
children. The agency failed to take appropriate steps to enforce the child
Support order, lost tract of the absent parent on several occasions and
subsequently failed to timely locate him, his assets, his employer or sources of
income. Even more troubling is that the IV-D agency knew that the father had
assets in excess of $100,000 and still failed, even when they had the father in
court, to take the proper legal action necessary - whether by pursuing contempt
proceedings. or simply opposing the granting of a continuance - to ensure that
the child support order was enforced. But most troubling is that the IV-D
agency maintains it has done nothing wrong and cannot be held accountable for
anything that has occurred in Mrs. LaFine’s case.
Burnadine Dunn's case represents yet another example of [linois’ poor
efficiency rate for establishing paternity and support orders. Here, [linois
deprived a mother and child of child support payments for 4 years by
needlessly dragging the case through the court system in an attempt to establish
paternity. This action was completely unnecessary since Ms. Dunn was
married to the child's father at the time of conception resulting in a
Presumption of paternity once the baby was born.
Then there is Petra Rivera's case. This case illustrates Dlinois’ failure to
Keep adequate records and communicate pertinent information to clients. In this
ll
case, the father moved for a downward modification of the child support order.
At that point he was already $2,007 in arrears to Ms. Rivera and owed the
state $746. The court granted the father’s request and entered an order below
Statutory guidelines. Ms. Rivera did not attend the modification hearing.
Neither [linois’ IV-D agency nor the State’s Attorney’s Office notified Ms.
Rivera that a modification hearing was scheduled or that she had a right to
appeal the decision. During the past year and a half, the father of Ms. Rivera's
children has been working off and on and Illinois has known when and where
he was working. At no point has Illinois served the father to begin the
Because Illinois has a poor computer system and is unable to track
significant events, Ria Cloutier and her children lost child support payments
when Illinois failed to pursue enforcement when Mr. Cloutier began receiving
unemployment benefits. Worse yet, after repeated phone calls, all initiated by
Ms. Cloutier to learn what she must do, if anything, to secure these payments,
an individual in DCSE told Mrs. Cloutier that there was nothing they could do
to enforce the order against Mr. Cloutier’s unemployment insurance benefits.
That was completely wrong information which reveals Illinois’ deliberate
indifference toward enforcing mothers’ and children’s right to child support
enforcement. The State merely had to comply with 45 C.F.R. §303.7 to
provide Mrs. Cloutier and her children with proper enforcement of the order.
The Project routinely sees these types of cases in our office because Illinois
fails to require even minimum competence or professional responsibility from
the lawyers it uses to pursue child support. [linois, through its policies and
practices, mismanages the legal resources at its disposal to the injury of the
rights of children and their mothers by failing to meet federal deadlines.
Il. Congress intended the requirements in Title IV-D and the
corresponding regulations to create enforceable rights under all
the opinions (majority and dissents) in the Maine vy. Thiboutout
line of cases .
A. Under the reasoning of all the Justices’ opinions who have written
on the subject of §1983, Title IV-D creates a right enforceable under
§1983.
Examination of all the opinions, addressing which statutes are enforceable
under § 1983, including all dissents, shows that Title IV-D creates enforceable
rights under every test this court has identified. Both the express language of
12
Tide [V-D and the corresponding federal regulations, as well as the legislative
history require recognition of a §1983 right under all the Justices’ views.
Congress’ recent enactment of the “Suter Override Bill’ underscores Congress’
Clear intent to create a §1983 right to the child support enforcement services
included in Title [V-D. Improving America’s Schools Act of 1994, Pub. L.
No. 103-382, 108 Stat. 3518 (1994), codified at 42 U.S.C. §1320(b)(13)
(1994). The new Welfare Reform Act makes clear that full compliance with
which was taken out of the statute. Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105
(1996). Even under the dissent in Maine vy. Thiboutout, Title [V-D is the type
of statute that §1983 is intended to enforce because it remedies unequal, class-
based lack of enforcement of child support laws in the states. Title [V-D meets
the legislative purposes of §1983 found in Monroe vy. Pape, 365 U.S. 167, 180
(1981). Title [V-D recognizes the civil right for women and children to obtain
child support through state enforcement.
1. Under the reasoning of Justice Brennan's majority opinion in Wright.
Title IV-D creates a §1983 cause of action.
In Wright v. Roanoke Redevelopment and Housing Auth, 479 U.S. 418
(1987), the Court elaborated the standards initially set in Pennhursi for
determining when a cause of action lies for statutory violations. These
standards have been followed by the majority in all subsequent cases until
Suter. Even in Suter. Chief Justice Rehnquist reaffirmed these principles while
adding another one for Spending Clause statutes. Suter vy. Amist M.. 112 S.
Ct. 1360, 1366 (1992). The Court in Wright recognized only two exceptions
when a §1983 right would be unavailable for enforcement of a federal statute:
(1) when the statute did not create enfo.ceable rights within the meaning of
$1983. Wright. 479 U.S. at 423 (citing Pennhurst State School and Hosp. v.
Haldermap. 451 U.S. 1, 19 (1980)); and (2) where “ ‘the remedial devices
provided . . . are sufficiently comprehensive to demonstrate congressional intent
to preclude the remedy of suits under §1983'" Id. at 424 (quoting Middlesex
County Sewerage Auth, vy, Nat'l Sea Clammers Ass'n. 453 U.S. 1, 20 (1981).
The first prong will be addressed in this part, and the second prong will be
analyzed in the next sectior of this brief.
The Wright court went on to define an enforceable right by relying on
Pennhurst to determine whether the statute provided mere findings or legislative
13
preferences (just a nudge in the preferred direction) or whether the provisions
were meant to be mandatory for the intended beneficiaries. Wright. 479 U.S.
at 422. In Wright. the Court found that the language of the Brooke
Amendment regarding rent ceilings in pubic housing projects was mandatory
and intended to benefit individual beneficiaries. Wright, 479 U.S. at 429-30.
Specifically, the Court recognized that tenants would be charged as rent “no
more and no less than 30% of their income.” Id, at 429-30.
The Court also concluded that the language at issue was not “too vague and
amorphous” to be judicially enforceable and binding. Id. at 4¥-32. The
regulations provided that a “reasonable” amount of utilities was includable in
remt. Since the regulations “specifically set out guidelines that the PHAs (state
agents} were to follow in establishing utility allowances, and they require notice
to tenants and an opportunity to comment on proposed allowances,” the
concept of reasonable utilities was “sufficiently specific and definite” so as to
be judicially enforceable. Id at 431-32. In the instant case, Title [V-D
standards are likewise concrete and not “vague and unenforceable.” Indeed,
Title IV-D regulations are even more specific and enforceable than those in
Wright. A judge has only to glance at a calendar to determine if a state agency
judge might have to determine whether the [V-D agency did “[{w]ithin 90
calendar days of locating the alleged father, . . . establish an order for support
or complete service of process necessary to commence proceedings to establish
2 support order . . . (or document unsuccessful attempts to serve process, in
accordance with the State's guidelines defining diligent efforts... .)” 45
C.F.R. §303.4 (d). As the recent audit report found, Dlinois’ lack of the
federally mandated case management system prevents [linois from determining
if it has even met deadlines like this." The opinion in Wright places special
emphasis on the presence of guidelines in the statutory scheme. Here, we do
not have mere guidelines. Title [V-D contains specific, numerical deadlines.
2. Under the reasoning of Justice O'Connor's dissenting opinion ip
Wright, Tide IV-D creates a §1983 cause of action.
Under Justice O'Connor's dissenting opinion in Wright. Title [V-D also
would create a §1983 cause of action (Justice O"Connor’s opinion was joined
“Office of Child Support Enforcement. U S. Department of Health and Human Services.
Report No. 0-95-PR/PM. Program Results Performance Measurements Audit. State of
Dhnows 2 (September 16. 1996).
14
by Chief Justice Rehnquist, Justice Powell and Justice Scalia). Wright. 479
U.S. at 432 (O'Connor, J., dissenting). Justice O'Connor adopts the majority's
test, but disagrees with its application. The dissenters look only to the
legislative action and history to determine whether Congress meant to establish
mandatory duties to individuals. Justice O'Connor's dissent centered around
her position that “ ‘the key to the inquiry is the intent of the Legislature’ " as
distinguished from regulations adopted by the Secretary. Id. at 433 (quoting
Sea Clammers, 453 U.S. at 13). Under this approach, the Court first examines
the statutory language “to determine if it is ‘phrased in terms of the persons
benefited’ " and is written “in mandatory rather than precatory terms.” Id
(quoting Cannon vy. University of Chicago, 441 U.S. 677, 692 n. 13 (1979)).
Title [V-D qualifies under Justice O'Connor's analysis in Wright. Section
652 of Title 42 of the United States Code lists the duties of the Secretary and
is replete with mandatory language, prefacing each duty with the word “shall”
Secretary “shall review and approve state plans; 42 U.S.C. §652(a)(3); “shall
evaluate the implementation of state programs. . . [and] conduct such audits of
state programs . . . as may be necessary to ensure their conformity with the
requirements of this part; 42 U.S.C. §652 (a)(4); and to ensure compliance
with “(tjhe standards required by subsection (a)(1) . . . shall include standards
establishing time periods.” 42 U.S.C. §652(h). Congress, in tum, required
that the State plan “must provide that the state will comply with such other
requirements and standards as the Secretary determines to be necessary to the
establishment of an effective program for locating absent parents, establishing
paternity, obtaining support orders. and collecting support payments.” 42.
U.S.C. §654(13). Congress thus explicitly bound the Secretary to enforce state
compliance with the Title IV-D and bound the states, after the “Suter Override
Bill.” to obey and enforce the tests made of the state plan. Justice O"Connor
concluded that Congress did not create an enforceable §1983 right in the
Brooke Amendment because the statutory language does not explicitly create
a right to utilities in rent. Wright. 479 U.S. at 433-34. The dissenters believed
that the legislative history showed that Congress considered and rejected a
proposal to create an enforceable right to “reasonable utilities.” Id. at 434.
In Wright. Justice O’Connor evinced the concern that “once it has been found
that a statute creates some enforceable right. any regulation adopted within the
purview of the statute creates rights enforceable in federal courts, regardless
of whether Congress or the promulgating agency ever contemplates such a
15
result.” Jd, at 438. Here, Congress clearly contemplates that mothers and
children have nghts to prompt child support enforcement services. Congress
specifically required that state child support enforcement program standards
within which a state must accept and respond to requests . . . for actions in
establishing and enforcing support orders, including requests to locate absent
parents, establish paternity, and initiate proceedings to establish and collect
child support awards. 42 U.S.C. §652(h). Here, unlike the situation in
Wright. where Justice O'Connor determined it to be unclear whether utilities
were included in rent, Congress laid out in detail the services that state agencies
must perform in specified time periods. HHS regulations show that they have
not been “unleashed from any connection to congressional intent,” as Justice
O'Connor determined to be the case in Wright’ Wright. 479 U.S. at 438.
Thus, here, not only was Congress explicit as to which services IV-D
recipients had rights to, but HHS regulations reiterated that same intent.
3. Under the reasoning of Justice Stevens’ majority opinion in Golden State.
Title IV-D creates a §1983 cause of action.
Writing for the majority in Golden State Transit v. City of Los Angeles. 493
U.S. 103 (1989), Justice Stevens applied the two-part test in Wright. (Also
see Wright. 479 U.S. at 448-49, Golden State, 493 U.S. at 106). Justice
Stevens noted that in determining whether a right exists, the Court has “asked
whether the provision in question was ‘intend[ed] to benefit’ the putative
plaintiff.” Golden State, 493 U.S. at 106 (quoting Wright. 479 U.S. at 430).
Justice Stevens relied on the same position in his dissent in Suter.
4. Under the reasoning of Justice Kennedy's dissenting opinion in Golden
State. Tide IV-D creates a §1983 cause of action.
Justice Kennedy concluded that the NLRA did not create a §1983 remedy
because “the only wrong committed by the state or its local entities is
musapprehending the precise location of the boundaries between state and
federal power.” Golden State. 493 U.S. at 114 (Kennedy, J., dissenting). In
the instant case, Congress’ language “secures” Title IV-D individual rights.
Title IV-D gives custodial parents and children rights to child support
enforcement from the state. The individual rights-creating language of the new
Welfare Reform Act is especially illustrative, requiring that a state will provide
child support enforcement services to “each child” already receiving certain
16
state services and “any other child” with an application on file. The Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104-93, 110 Stat. 2105, §301(A) (1996). Further, §301(B) extends coverage
to “the custodial parent of such a child.” §301(B). Thus, any child and their
custodial parent has a right to the state's child support enforcement services.
Moreover, there is no preemption issue at stake here as had existed in Golden
State. Title IV-D itself creates all the rights.
5. Under the reasoning of Justice Brennan's majority opinion in Wilder,
Title [V-D creates a §1983 cause of action.
In writing for the majority in Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498
(1990), Justice Brennan applied the Wright test in holding that healthcare
providers had a right, secured under § 1983, to payments based on reasonable
and adequate rates. Justice Brennan cites the provisions “establish{ment) [of]
a system for reimbursement of providers” and its “phras[ing) in terms of
benefiting healthcare providers” as support for his conclusion that there was
“litte doubt” that healthcare providers were the intended beneficiaries of the
statutory scheme. Wilder, 496 U.S. at 510. Likewise, Tide IV-D establishes
a system for providing child support enforcement services to mothers and
children and is phrased in terms clearly benefiting mothers and children.
6. Under the reasoning of Chief Justice Rehnquist's dissenting opinion in
Wilder, Title [V-D creates a §1983 cause of action.
Writing for the dissent in Wilder, Chief Justice Rehnquist concluded that a
§1983 remedy was not available under the Boren Amendment to the Medicaid
Act. Wilder. 496 U.S. at 524 (Rehnquist, J., dissenting). In reaching his
conclusion, the Chief Justice worked from the premise. as the Court had done
in Wright. that “[{flor a §1983 remedy to lie, the language used by Congress
must confer identifiable rights.” Id. at 526. In finding that medical providers
structural evidence (the provision at issue was the thirteenth listed requirement
for in the State plan provision without clearly conferring any substantive rights
on the providers) and the absence of “any express ‘focus’ on the providers
{plaintiffs} as the beneficiary class” indicated that Congress had not intended
to confer such rights to the class of providers. Id. at 527.
In Wilder. patients. not providers, were the intended beneficiaries of the
Medicaid Act. Here. the statute is explicit that the intended beneficiary class
17
the Authorization of Appropriations
is mothers and children. In fact, : | section,
42 U.S.C. §651., places “express focus” on mothers and children. Congress
vppropriated money “{f}or the purpose of enforcing Suppor O°NBA e
what
a In 1988, issatisfied with state performance, Congress enacted
became entitled “Prompt State response to requests
wane eo een” USC §652(h) (1996). Under oe
i periods within which a State must accept
for assistance in establishing and enforcing ‘ sae
ie. including requests to locate absent parents, establish pated Ot
| . 2
§654(4), (6) (1995). thus underscored that a nar
under Title TV-A and“any other child” who has an APPLICA E esti
taper ee anand agar L. No. 104-193, 110 Stat.
, . ‘ ; ‘ ‘ the
08 088 (which replaces 42 U.S.C. §654(4)). paeere om
Medicaid Act, Congress has expressed clearly that the
of Title IV-D were mothers and children.
7” i te, he would
enforcement through §1983 of the process pee oo
allow $1983 to be used to enforce ihe Prossts | Wilder, | ee os
left the stares with discretion to develop 4 — ony atari
524. However, Chief Justice Rehnquist determined | =
opinion, “every $1983 action hereafter brought DY Prowl at
seek the substirusion of a rate system prefercl saparsigezue
ystem chosen b the State.” Id. © orders entered 7
s earrore will require the States to adopt reimbursement rate Systems "TSF
‘com those Congress expressly required them to adopt - « ld
——
18
Here, on the other hand, Congress did not delegate this authority to the states.
The federal government retained control over the operation of state [V-D
programs. In fact, dissatisfied with the states performance under more flexible
standards, Congress instructed the Secretary to promulgate a system of
absolute deadlines. Since Congress has chosen not to allocate its authority as
it did in the Medicaid Act at issue in Wilder, the Chief Justice's concern that
courts would be displacing congressionally enacted law with their own law is
inapplicable. Rather, by enforcing the deadlines authorized by Congress and
promulgated by the Secretary, the courts will be giving force to congressionally
enacted law.
Moreover, Chief Justice Rehnquist concluded in Wilder that while the
provider plaintiffs did not have a right to have anyone outside the state agency
decide if they are receiving a reasonable rate, they may have a right to “bring
a §1983 action to require that rates be set according to that process”’ that the
federal government left to the states to develop. Id. at 527. Likewise, [IV-D
families merely claim that they have a right to the process that Title [V-D and
the regulations create. IV-D families do not claim that they have a right to
child support enforcement, which under the Chief Justice’s analysis, the Wilder
majority would hold here; rather, ['V-D families are claiming that they have a
right to the process of state provision of prompt child support enforcement
services.
Finally, unlike the rights at issue in Wilder, denying a §1983 remedy would
render Title IV-D and particularly 42 U.S.C. §652 (h) a “dead letter.” In
Wilder, the Chief Justice alluded to the “Secretary's oversight” as providing
some relief. Id, at 528. In this case, the Secretary has never imposed a single
sanction on a noncomplying state agency, despite a history of failure on the
part of state child support enforcement programs. Moreover, in Wilder, as
Chief Justice Rehnquist noted, the Boren Amendment changed the statutory
scheme to “allow the States more latitude in establishing Medicaid
reimbursement rates.” Id, Here, Congress removed any latitude previously
present in the statutory scheme by instructing the Secretary to create deadlines.
42 U.S.C. §652 (1996). To now refuse a §1983 remedy to IV-D beneficiaries
would thus contradict clear congressional intent and render Title [V-D a “dead
letter”, leaving federal time limits without any power to enforce them.
7. Under the reasoning of Chief Justice Rehnquist's majority opinion_ip
Suter, Title IV-D creates a §1983 cause of action.
19
In Suter. the majority ruled that the Adoption Assistance and Child Welfare
Act (the “Adoption Act”) did not create enforceable rights under §1983. Suter
yv. Artist M., 503 U.S. 347 (1992). The Court found that the Adoption Act
only required the State to file a plan that sets forth the L6 listed features but did
not require actual compliance with the plan. Id. at 357. In explaining why the
Adoption Act does not require more than a proper written plan, Justice
Rehnquist wrote that “(t]he regulations promulgated by the Secretary to
enforce the Adoption Act do not evidence a view that §671(a) places any
requirement for state receipt of federal funds other than the requirement that the
State submit a plan to be approved by the Secretary . . . What is significant is
that the regulations are not specific and do not provide notice to the States that
failure to do anything other than submit a plan with the requisite features, to
ve approved by the Secretary, is a further condition on the receipt of funds
from the Federal Government.” Id, at 361-62.
Unlike the provisions in Suter which gave no guidance to measure
“reasonable efforts”, Title 'V-D imposes specific, numerical deadlines on the
states. Importantly, this direction to the secretary is in a different section of
Title IV-D than the section setting out the State requirements. Title ['V-D
requires that States take specific steps in order to establish paternity and
enforce child support. To obtain approval and ultimately federal funding, a
State must not merely submit a State plan under [V-D, but must also agree to
comply with Title IV-D and its corresponding regulations. 42 U.S.C. §652(13)
provides: “‘A state plan must provide that the state will comply with such other
requirements and standards as the Secretary determines to be necessary.” In
the contract annually entered into between each state and HHS, the Governor
of each state must sign a statement again agreeing to comply with Title IV-D.’
This certification appears on the signature page itself. Moreover, the
requirement that the Governor certify compliance each fiscal year before
release of federal funds underscores that Congress did not merely require states
to make assurances that they would comply. Rather, States must actually
comply on a continuing basis to receive federal funds. If compliance were just
a goal and not a requirement, Congress would not have required annual
"PL 104-193 Section 402 (a) provides: “[{T]he term ‘eligible State’ means, with respect to a
fiscal year, a State that . . . has submitted to the Secretary a plan thai the Secretary has found
includes the following:
(2)-A certification by the chief executive officer of the State that, dunng the fiscal year, the
State wul operate a chid support enforcement program under the State plan approved under
part D.”
—
20
certification.
Indeed, Petitioner's argument suggests that Title IV-D is too burdensome for
anyone, including reluctant fathers, to really expect that Title [V-D provisions
will be obeyed. The States argue that compliance is overly burdensome on
State financial and legal resources. Such an argument is akin to proposing that
public defenders and prosecutors in the criminal context should not be held to
any level of professional responsibility because doing so would be financially
burdensome on the state. Such an argument is disingenuous, especially in the
case of Title IV-D. First, the problem is not inadequate funding or too many
cases, but poor management. Some states do much better. Pennsylvania
collects $9.09 for every dollar expended. Michigan collects $8.43, while
Illinois collected $2.36 and Arizona collected only $1.79 per dollar expended.
States may opt not to participate in Title IV-D, participation in Title IV-D is
not mandatory. Petitioner's argument that States’ rights would be in danger if
the Court were to allow a §1983 right is misleading because the States can
simply opt out of Title IV-D if they object to its terms. In truth, what
Petitioner is actually arguing is that this Court should find that Title IV-D
places no burdens whatsoever on state actors (especially managers at the
State's Attorney's Offices and legal administrators in the IV-D agency).
B. The recent passage of the Suter Override Bill underscores Congress’
intent to create enforceable rights to the services included in Title
IV-D.
That Title IV-D’s requirements are binding is particularly clear given
Congress recent enactment of what is commonly known as the “Suter override
bill.’ Under the Act, states cannot comply by simply submitting a plan with
the correct boilerplate language. The terms of the Plan must be obeyed. It is
as if the words (the “State plan. . . must provide that") were excised from the
text of Title IV-D and the remaining language (‘The State will comply with
such other requirements and standards as the Secretary determine to be
necessary. . .”, 42 U.S.C. § 654 (13)) is enforced. The states knew that they
were agreeing to Obey federal regulations setting time limits, not just submitting
a written statement in the Plan agreeing to comply.
The bill provides: “In an action brought to enforce a provision of the Social
‘Improving America’s Schools Act of 1994. Pub. L. No. 103-382, 102 Stat. 5518 (1994),
codified in 42 U.S.C. §1320(b)(13) (1994).
21
Security Act, such provision is not to be deemed unenforceable because of its
inclusion in a section of the Act requiring a State plan or specifying the
required contents of a State plan. This section is not inended to limit or
expand the grounds for determining the availability of private actions to enforce
State plan requirements other than by overturning any such grounds applied in
Suter but not applied in prior Supreme Court decisions respecting such
bility...” Id
"aca history makes it clear that the Suter Amendment, 42 U.S.C.
§ 1320 (a)(2), is designed to ensure that individuals who have been injured by
a State’s failure to comply with the federal mandates of the State plan titles of
the Social Security Act are entitled to seek redress in the federal courts to the
extent that they were able to prior to the decision in Suter. The House
Committee reported that the Suter amendment is designed to achieve three
results. It “(1) responds to the recent Supreme Court decision in Suter, which
dramatically limited the ability of program beneficiaries to enforce the State
plan titles of the Social Security Act; (2) preserves private causes of action as
they existed before the Suter decision; and (3) reaffirms that the State plan
titles of the Social Security Act impose binding obligations on participating
States to comply with the requirements of the Act.” See Conference Report on
H.R. 11, 102nd Cong. 2nd Sess. 138 Cong. Rec. H. 12552 (October 5, 1992).
Even those who expressed reservations concerning the Suter amendment
recognized that it allows intended beneficiaries of the Social Security Act to sue
a State for its failure to provide the benefits that the plan promises and that the
State agreed to fulfill in exchange for federal funds. For example,
Representative Archer had reservations about the At because of his
understanding that the amendment would permit the right to sue if any State
plan requirement is not actually met. See 102nd Cong. 2nd Sess., 138 Cong.
Rec. H. 5950 (July 2, 1992). This Statement demonstrates that even those in
Congress who expressed opposition to the Suter amendment understood that
its intention was to permit beneficiaries of the Social Security Act a broader
would allow to sue participating states.
cae of the courts that have addressed the issue have read the
amendment to reject the Supreme Court's reasoning in Suter and to require
courts to return to the pre-Suter approach when deciding whether to recognize
a private cause of action to enforce provisions of the Social Security Act other
than §671(a)(15). See Marisol A. v, Giuliani. 929 F. Supp. 662 pean
1996): Harris v. James, 883 F. Supp. 1511, 1520 (M.D. Ala. 1995); Jeanne
22
B. ex rel. Blondis v. Thompson. 877 F. Supp. 1268, 1285 (E.D. Wis. 1995).
In Jeanine B.. the Court explained what would appear to be the common
understanding of the amendment's effect:
the amendment overrules the general theory in Suter that the only private
night of actions available under a statute requiring a state plan is an action
against the state for not having that plan. Instead the previous tests in
Wilder and Pennhurst apply to the question of whether or not the
particulars of a state plan can be enforced by its intended beneficiaries.
Id. at 1283.
C. Title IV-D is enforceable under the Dissent in Maine v. Thiboutoui.
In Maine v. Thiboutout, 448 U.S. 1, 19 (1980) (Powell, J. dissenting),
Justice Powell dissented in an opinion in which then Justice Rehnquist joined,
from the Court's conclusion that federal statutes other than civil rights statutes
may be enforced under § 1983. The opinion recognized that a major purpose
of the Reconstruction Era Civil Rights Acts “was to involve the federal
judiciary in the effort to exert federal control over state offices who refused to
enforce the law.” Id at 33. Here, Congress reacted to the failure of the states
to enforce their child support laws by passing Title IV-D and creating a
massive federal/state program. Indeed, IV-D was adopted in response to a
violation of equal rights of a class overwhelmingly composed of women and
children. The class of men were the beneficiaries of unequal government
enforcement of the laws. Title IV-D changed many state laws that unduly
discriminated against mothers and children and in favor of reluctant fathers.
(Indeed. some fathers even became proud “deadbeat dads” for evading
collection efforts).
Later. Congress found the performance of the states to be inadequate and
ordered the Secretary of the Department of Health and Human Services to
adopt standards setting deadlines for performing various child support
functions in each case. Congress acted because of state failures to enforce
State family law in a prompt fashion. Justice Powell's reliance on Monroe y,
Pape shows that even under his dissent in Maine, Title IV-D is enforceable
under §1983. After all, Monroe found that §1983 was passed “to afford a
federal right in federal courts because, by reason of prejudice, passion, neglect,
intolerance or otherwise, state laws might not be enforced and the claims of
citizens to the enjoyment of rights, privileges and immunities guaranteed by the
fourteenth amendment might be denied by the state agencies." Monroe, 365
23
US.. 167. 180 (1961). Titie IV-D was passed for this very reason. Monroe
also found that §1983 was adopted because state officials were unable or
unwilling to enforce a state law.
D. Title IV-D focuses unmistakably on custodial parents and their
children as beneficiaries of the federal funding.
First, there can be no doubt that Title IV-D is intended to benefit families
with children. The first section of Title IV-D includes among its purposes for
enactment “enforcing the support obligations owed by absent parents. . . and
assuring that assistance in obtaining support will be available under this part
to all children (whether or not eligible for [AFDC] for whom such assistance
is requested” 42 U.S.C. §651.
Amici in support of the Petitioner (hereinafter “ Amici”) assert that children
and custodial parents are not the “especial beneficiaries” of the services
mandated under Title TV-D as required by the Wright-Wilder test for
establishing “a right under federal law” enforceable under §1983."' This
argument has been rejected by every Circuit which has considered the issue
save one."? It is refuted by the statutory language, legislative history, the policy
statements of the federal Office of Child Support Enforcement and a common
sense view of the intended operation of Tide IV-D.
Amici argue that Title IV-D is aimed at reduction and avoidance of welfare
costs but then insist on the non-sequitur that children and their custodial
parents cannot be intended to be benefitted thereby. However, recoupment of
welfare benefits and avoidance of welfare enrollment can only be accomplished
if children receive effective child support services. To achieve the goals of the
Title IV-D. the Petitioner and her fellow state IV-D directors must produce
actual results--the collection of child support. The Respondent class of
custodial parents here have sued for timely services and are fully aware that
support collections may not result in every Case. However, neither the
congressionally desired benefits to children who avoid the welfare system and
who may be lifted out of poverty, nor reduction in welfare costs, can be
achieved if Petitioner does not provide the timely services to each family as
State's bref at 6-12: Amicus brief of the American Public Welfare Association et al, at 27
n. 70: DA's brief at 25-26. Petitioner does not make this argument.
“See Albiston v. Maine Comm'n of Human Services. 7 F.3d 258 (1st Cir. 1983); Howe v.
Ellenbacker. 8 F.3d 1258 (8th Cir. 1993); Carel v. Howser, 923 F.2d 1208 (6th Cir. 1991);
and Freestone: but see Wehunt v. Ledbetter. 875 F.2d 1558 (11th Cur. 1989).
24
required by federal law.
The Secretary requires specific action in compliance with the deadlines at
every critical step in providing child support services. For example, the first
step is often the location of a noncustodial parent or putative father “For all
cases... the IV-D agency must attempt to locate all absent parents or sources
of income and/or assets when location is necessary to take necessary action.
Under this standard the IV-D agency must [u]se the appropriate location
sources. . ."" 45 C.F.R. §303.3(b) (1996) (emphasis added). If location efforts
are unsuccessful, the IV-D agency must “([rjepeat the location attempts. . .
citer quarterty or immediately upon receipt of new information.” Jd. “For all
cases” is used in most of the 45 C.F.R., Part 303 regulations.
Delays and denials of services constitute violations of specific regulations
not dissatisfaction with timely support services which were unsuccessful.
Petitioner cannot blame the noncustodial parent for the agency's repeated loss
of files or its failure to act on new location information provided by a custodial
parent to establish or enforce an order for support (45 C.F.R. §§303.4(d)
303.6(c)(2)); its failure to act when a wage withholding payment is not received
(45 C.F.R. §§303.6(a) and (b)); its failure to attempt to effectuate a
withholding order when obligated parent becomes delinquent (45 C.F ne
303.6(c), 303.100) or its failure to timely and accurately distribute sepport it
has collected (45 C.F.R. §§ 303.32, 302.51). Petitioner has never contended
that these were unusual or isolated errors and the record on summary judgment
demonstrates that the Petitioner systematically deprived children of these
services. See Freestone v. Cowan, 68 F. 3d 1141, 1144-45 (9th Cir. 1995)
Moreover. DCSE specifically rejected IV-D agency assertions that the
should not be held to specific tasks and time limits and determined that rnd
requirements are realistic and necessary for the states to achieve. DCSE stated:
Given the extent of comments about how many different entities are
involved in IV-D process, lack of adequate case management processes in
many IV-D programs and delays in providing services, we believe that
Setting specific time frames for each step of the process will ensure States
provide necessary services on a timely basis.
54 Fed. Reg. 32284, 32290 (Aug. 4, 1989),
The regulations are very Clear that children would and should benefit from the
services required of the IV-D agencies.
25
III. Recognition by this Court of a §1983 cause of action will not result
in a flood of the federal courts.
The States Amici claim that recognition by the Court of a §1983 cause of
action for child support enforcement will flood the federal courts. This is flatly
untrue. State courts, not federal courts, will hear the lion’s share of these
§1983 suits. Furthermore, state courts themselves will not be flooded by
recognition of a §1983 cause of action. At the time a §1983 violation arises,
the parties will already be or will eventually be in state court on the underlying
child support case. A §1983 suit can simply be consolidated into that core
child support suit. The practical realities are such that the courts will not be
overrun. Legal aid lawyers representing mothers have neither the money, time
nor staff to contribute more than a trickle to court dockets. This Court's
recognition of a §1983 action will give families hope and empower women to
regain control of their lives. Indeed, there will need to be some class actions
to correct systemic failures but there will be no flood of litigation.
A. IV-D federal enforcement is deficient on paper and a ‘dead letter’
in practice.
In practice, states have never been held to the funding conditions imposed by
Title IV-D. No state has ever been penalized Ilinois, for example, is woefully
out of compliance as recently as the audit that was just released in September,
1996 shows. In Suter, Chief Justice Rehnquist recognized that §1983 was
important for private plaintiffs to keep statutory provisions from being
rendered “a dead letter.” Suter, 503 U.S. at 360-61.
Title IV-D is a “dead letter” that requires §1983 enforcement. Although
HHS theoretically has the power to impose sanctions or reduce state funding,
the Secretary has never seen fit to use its power despite extensive state
violations. The audit/penalty provision allows states to pass in and out of
substantial compliance without actually improving the operation of their IV-D
programs, much less obtaining child support within the mandatory deadlines.
There are no remedies whatsoever for individual custodial parents who have
waited years to obtain child support enforcement services more quickly.
Enforcement of Title IV-D rights is a “dead letter.”
B. Illinois’ record with HHS demonstrates the failure of Title IV-D.
[linois’ record is illustrative. Dlinois has a record of repeated noncompliance
throughout the past decade, without a single reduction in funding. Illinois
26
shows how the states fail to meet the requirements set by the federal
government. The Department of Health and Human Services recently
conducted an audit of the Ilinois Division of Child Support Enforcement from
April |, 1994 through March 31, 1995. The audit first excluded about 25%
of the cases that had problems (insufficient information, father’s who lived out
of state, and fathers who were economically unable to meet the enforcement
orders). The audit then looked at only those cases where the Illinois’ DCSE
had solid information, cooperative clients, and fathers who were financially
able to make support payments. The audit determined that Dlinois’ DCSE
failed to establish paternity and support orders on time in 29% of these cases.
The audit explained that this low efficiency rate reflected the failure of Dlinois’
DCSE to even attempt service of process in many cases and the failure to refer
numerous Cases to the State’s Attorney even after the father was located. The
audit also determined that Illinois’ DCSE failed to meet the statutory
requirements for review and adjustment of child support orders in 36% of the
cases. Furthermore, the audit determined that inadequate records were
maintained for most cases, and the computer system was unable to track
significant case events.
Iinois for the States’ Amici takes the position that it is not obligated to
enforce federal child support deadlines on an individual basis. This is not
Surprising since Illinois has also opposed every effort to use state
administrative or judicial remedies to enforce the federal time limits. At every
effort in state courts and agencies, the [inois Attorney General asserts there
are NO state-created remedies to enforce the federal deadlines.
In response to an avalanche of complaints, the Minois Legislature established
an administrative accountability process in which individuals have a right to
discuss Dlinois’ failures in their individual cases and prospective actions to be
taken in the future. But the Attorney General takes the position that these
Proceedings are only informational and not binding on the State. At most
conferences the issue is the State's failure to meet federal deadlines. yet the
Illinois Department of Public Aid refuses to discuss past failures and refuses
to set deadlines to which it must adhere.
Without § 1983, custodial parents cannot even obtain an explanation from the
State's Attomey's Office about delays in their court cases. Although the
State's Attorney is a contracting party receiving funds under IV-D and is
defined as part of the Child Support Enforcement Unit which must provide an
explanation upon the request of the custodial parent under Illinois law, the
27
Office refuses to do so. Also, it rebuffs requests that Assistant State's
Attorneys appear at the conference which custodial parents can request when
they do not receive a satisfactory explanation.
When mothers have turned to the state courts to force the State's Attorney's
Office to attend these conferences, Dlinois has escalated their stance from one
of denial to active coercion. In court, the States’ Attorney Office, who is under
contract with Dlinois to appear in court, moves to withdraw from the case.
This is a blatant attempt by [linois to deny its child support enforcement
services to complaining mothers. Through this tactic, Illinois has placed
mothers and children in an impossible position. If the mothers bend to the will
of Dlinois, they are unlikely to obtain child support anytime in the near future.
If they continue to push for compliance, Dlinois will remove the services which
which are vital in many cases to obtaining child support. Fortunately, state
courts have not allowed the State’s Attorney’s Office to withdraw from these
cases.
C. Most §1983 litigants will turn to state, not federal courts to pursue
their claims.
Since State courts have jurisdiction over official capacity actions for
prospective relief, most § 1983 cases will be brought in state, not federal, court.
State courts have concurrent jurisdiction over suits brought under federal law.
Maine v. Thiboutout, 448 U.S. 1, 3, mn. 1 (1980); Martinez v. California, 444
U.S. 277, 283 n. 7 (1980). Further, state court must hear the same type of
claims, Testa v. Katt. 330 U.S. 386, 393-94 (1947), and claims between
similarly situated litigants, Howlett v. Rose. 496 U.S. 356, 380-81 (1990). as
those suits under state and federal law that the state court does in fact entertain.
State courts are thus obligated to entertain official-capacity suits for
prospective injunctive relief. Will vy. Michigan Dep't. of State Police, 491 U.S.
58, 71 n.10 (1989) (quoting Kentucky v. Graham, 473 U. S. 159, 167 n. 14
(1985)). Because the | 1th Amendment does not apply to suits for prospective
relief, state courts will have jurisdiction over these §1983 suits.
§ 1983 claims against state IV-D officials will most likely be consolidated
with the core child support litigation already in state court. Since most child
support cases end up in the state courts, there will be few “unattached” §1983
suits. Under the present structure, a mother has a continuing action against a
father from the moment a patemity suit is filed in state court until that father’s
nal eS ae) —
28
child reaches the age of majority. The presiding judge will have the power to
consolidate the §1983 suit into the paternity suit. Even if a §1983 violation
occurs before a child support suit is filed, state courts can consolidate the
§ 1983 action into the support suit when it eventually ends up in court. Though
some individuals may choose to bring §1983 actions in federal court, where the
defenses may be different from those available in state court, at this stage the
Court need not decide the scope of any defenses. The only issue is whether a
§ 1983 cause of action to available.
D. The remedies provided under IV-D are not sufficient to override
Contrary to Petitioner's argument, Seminole Tribe v. Florida devs not
prohibit Respondents from suing a state officer in her official capacity. The
Seminole Tribe Court declared that a “carefully crafted and intricate remedial
scheme” evidences a Congressional intent to maintain state sovereign immunity
and foreclose Ex parte Young access to the courts. See also Ex Parte Young.
209 U.S. 123 (1988). Seminole Tribe, 116 S. Ct. 1114, 1132 (1996). The
Court's opinion in Seminole Tribe is inapplicable because Title IV-D is devoid
of any “remedial scheme” whatsoever accessible to the beneficiaries of IV-D.
Petitioner claims that the audit and penalty scheme in Title IV-D meets the
“carefully crafted and intricate remedial scheme” standard announced in
Seminole Tribe. In Seminole Tribe. the remedial scheme was carefully crafted
to provide a remedy to the beneficiaries, the Indian tribes, to displace the
remedies under §1983. Here, the beneficiaries, the mothers and children, have
no remedy - the audit is initiated by the Secretary of HHS and evaluates overall
substantial compliance, at the 75% level, and not performance on each
individual case.
E. Title 1V-D Does Not Provide a Comprehensive Enforcement Scheme
Foreclosing a Right of Action under §1983.
A statutory remedial scheme that provides no remedy for the violation of
nghts created in favor of one of the statute's two express beneficiaries certainly
cannot be considered, by any stretch of reason, to be sufficiently
comprehensive to foreclosure of §1983 actions. Nevertheless, Petitioner argues
that the remedial scheme is “sufficiently comprehensive” so as to foreclose a
Cause of action under §1983, even though the scheme leaves the statute's
express beneficiaries without any method. means or avenue for enforcing rights
granted in mandatory terms under the plain language of the statute. However,
29
Petitioner's argument is both contrary to precedent and illogical.
pence ar Jencieestn se esteem eat tr ena
in Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n. S.
| (1981). However, the remedial scheme addressed in Sea Clammers consisted
of elaborate enforcement provisions that included explicit civil and criminal
penalties for violation of the statute and granted any interested party the ability
to seek judicial review of any administrative determination. Sea Clammers,
435 US. at 13-14. In contrast, the limited remedial scheme provided by Title
IV-D contains no such comprehensive or elaborate enforcement provisions
from which a valid inference that Congress intended to foreclose § 1983 actions
can be drawn. Title ['V-D provides no civil or criminal penalties for violation
of its provisions or of the federal regulations promulgated under it. In truth.
Title IV-D’s limited remedial scheme provides only financial disincentives, up
to a maximum 5% reduction in federal matching funds, to be levied by the
Secretary of Health and Human Services to deter the continued violation of
Title IV-D provisions. According to The Amici Curiae Brief of the State of
Iinois, such financial penalties have never been levied against any of the
several states (Amici Curiae Brief of the State of Ilinois at foomote 8) even
though the “actual child support collection rate nationally is only 18%.
Petitioner's Brief on the Merits at 19. How can such a remedial scheme be
as ive or effective?
gy nen in gt nbs 0 comprehensive
enforcement schemes that preclude or foreclose an action under §1983. The
“sufficiently comprehensive” exception to the general rule that plaintiffs may
bring § 1983 causes of action for violations of federal statutes has been viewed
as a narrow one. Wnght v. City of Roanoke Redevelopment and Housing
Auth. 479 U.S. 418, 423-24 (1987). Since the Sea Clammers decision, only
one other case -- Smith y. Robinson. 486 U.S. 992 (1984) -- has held om a
statute itself provided a remedial scheme “sufficiently comprehensive” to
foreclose an action under §1983. A distinguishing feature of these two
remedial schemes found “sufficiently comprehensive" to preclude actions under
§ 1983 is that both of these schemes included express private remedies that
allow citizens to compel state action when the state violates the federal
statut irements.
In seems Ga Court squarely rejected the argument that enforcement
schemes are “sufficiently comprehensive” so as to foreclose §1983 actions,
when those schemes provide solely for detailed audits and limited fiscal
30
penalties to deter violations of the statute and fail to include express private
remedies or to specifically authorize parties to seek judicial review of
administrative determinations. In Wright. the Court also rejected the argument
that the existence of other possible state court remedies in favor of the plaintiff
would bar §1983 causes of action. The Wright Court reasoned that the
existence of a state court remedy is hardly a sufficient reason to bar an action
under §1983, which was explicitly adopted for the purpose of enforcing federal
rights. Wright, 479 U.S. at 429.
Further, the Court has repeatedly held that administrative enforcement
schemes, such as the one included in Title IV-D must be presumed to parallel
the private §1983 action, rather than occupy the same ground. In Rasodo y.
Wyman. 397 U.S. 397 (1970), the Court held that the Secretary's authority to
withhold funds does not preclude private actions to enforce individual rights
under Title IV-D. The court stated, “{wJe are most reluctant to assume
Congress has closed the avenue of effective judicial review to those individuals
most directly affected by the administration of its program” Id. Finally, in
Wright. 479 U.S. at 428 the Court held that the Secretary's authority to audit,
enforce annual contributions contracts, and cut off federal funds are
generalized powers that are insufficient to indicate a congressional intention to
foreclose §1983 remedies.
CONCLUSION
For the reasons set forth in this brief, the Anti-Poverty Project of the Edwin
F. Mandel Legal Aid Clinic of the University of Chicago Law School, as
Amicus Curiae, requests this court to affirm the judgment of the Court of
Respectfully submitted,
GARY H. PALM
Counsel of Record
Attorney for Amicus Curiae,
The Anti-Poverty Project
Edwin F. Mandel Legal Aid Clinic
University of Chicago Law School
In Support of Respondent
January 6, 1997
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Edwin F Mandel Clin of
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6020 Soum Unversity Avenue
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Gary Pals
Mandel Legal Aid Clinic of Chicago
6020 S$. University Ave.
Chicago, IL 60637
Re: Blessing ». Freestone
U.S. Suprema Court No. 95-1441
Dear Gary:
This is to confirm that I consent to the filing of an amicus
curiae brief by the Mandel Legal Aid Clinic of Chicago on benalft
of respondents in the above-entitied satter.
Sincerely,
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Mareha S. Serton
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